AMARAPPA v. ASSISTANT COMMISSIONER — 1996 DIGILAW 599 (KAR)

M. F. SALDANHA, J. ( 1 ) PROCEEDINGS under the Land Acquisition Act have from time to time thrown up different facets of the law, most of these having been occasioned by the negligence displayed on the part of the land acquisition authorities. This is one more of such cases and the Courts have consistently culled out the principle that a citizen's right to receive fair compensation can neither be defeated nor extinguished due to the negligence/misconduct that may be attributable to the department. The Courts have proceeded on the footing that a citizen cannot be punished for the misdemeanour of the Opposite party and in doing so, the Courts have never lost sight of the principle that invariably the claimant happens to be a rural fanner who belongs to the weaker section who is invariably illiterate and ill-equipped to even agitate for his rights. The law has not made allowances, but has very clearly and consistently upheld the well-settled canon of jurisprudence, that the concept of doing justice requires that the end result of the process will not be frustrated due to factors for which the claimant or the citizen cannot be held responsible. Conversely, I need to point out that the State and its officers cannot be conferred with an unfair benefit or unjust enrichment that may result due to a set of circumstances for which nobody other than the State and its officers are responsible. ( 2 ) THE controversy that has arisen in the present C. R. P. may briefly be summarised insofar as the question has arisen as to whether, in a case where the application under Section 18 (1) for making a reference to the Court has been filed in time and the Deputy Commissioner does not act on that application for years together, the right to have the reference adjudicated by the Civil Court can be said to have been extinguished within the normal period of limitation. The Division Bench of this Court after considering the law in considerable detail, laid down in the decision reported in ILR 1991 Karnataka 1899 that where the application has not been filed within the period prescribed under Section 18 (1) with the Land Acquisition Officer and within the three-year period prescribed under Section 18 (3) (b), that, on the expiry of the aggregate period of 3 years and 90 days, the right to claim a reference to the Court stands extinguished. That decision was on an entirely different set of facts where fraudulent applications were made after the lapse of 14 years and the Land Acquisition Officer made a reference to the Court and the Division Bench had occassion to come down heavily on such virtually fraudulent applications and to lay down that the right stood extinguished on the expiry of the prescribed period. This is a case where there is no such fraud involved and a case in which the application has been made within the prescribed period of time, but where the Land Acquisition Officer has slept over the matter in a deep slumber that lasted for 25 years. The Division Bench judgment is, therefore, distinguishable and will not bind the petitioner in the present case. The notice in the present proceeding under Section 12 (2) of the Act was issued to the claimant on 24. 11. 1966. He filed an application under section 18 (1) asking for a reference within the prescribed period i. e. on 20. 1. 1967. The authorities did nothing in the matter and after a long wait, on 23. 4. 1984, the claimant filed an application under Section 18 (3) (b) before the Court and on this application, the Court directed the Land Acquisition Officer to make a reference. This order was passed by the court on 27. 10. 1984 and it is very significant to record that despite such an order from the court to which there was no objection from the State, the reference was made only on 24. 7. 1992 which is after a lapse of another 8 years. This order was passed by the court on 27. 10. 1984 and it is very significant to record that despite such an order from the court to which there was no objection from the State, the reference was made only on 24. 7. 1992 which is after a lapse of another 8 years. This case is illustrative of the levels of criminal misconduct that is prevalent on the part of this department of the State Government where, the Division Bench of this Court had occasion to come down on several dishonest and fraudulent malpractices in relation to land acquisition proceedings and where even Court orders take 8 years for implementation. It is virtually in this background, that one needs to approach the further developments in the case whereby the State raised the objection that the reference which was made in the year 1992 was not a valid one insofar as it was filed well beyond the period prescribed by the Section. Whereas the law recognise a principle that a party cannot take advantage of its own wrong, this was a classic instance where the reference that should have been made in the year 1967 and which finally reached the Court in the year 1992 is objected to by the very defaulting, party, namely the department. The trial Court misapplied the ratio of the Division Bench ruling referred to by me earlier and held that the right to have the reference adjudicated by the Civil Court is time-barred and also upheld the objection canvassed on behalf of the State that the order passed on 27. 10. 1984 is an invalid order because, that order itself was timebarred insofar as the applicant ought to have approached the Court under Section 18 (3) (b) within the period of 3 years and 90 days and, consequently, the lower Court dismissed the reference. This C. R. P. is directed against that order. ( 3 ) BY way of a preliminary objection, Mr. Goulay has virtually anticipated the case pleaded by the learned Government Advocate namely that the lower Court itself was not competent to entertain the application to pass an order under Section 18 (3} (b) on 27. 10. 1984 in respect of a 12 (2) notice issued to the claimant on 24. 11. 1966. Mr. Goulay has virtually anticipated the case pleaded by the learned Government Advocate namely that the lower Court itself was not competent to entertain the application to pass an order under Section 18 (3} (b) on 27. 10. 1984 in respect of a 12 (2) notice issued to the claimant on 24. 11. 1966. Mr. Goulay has raised a twofold submission, the first being that it is not competent for the lower Court to question the validity or correctness of the order dated 27. 10. 1984 which has become final. Learned counsel drew my attention to two decisions of the Supreme Court reported in AIR 1964 SC 907 and AIR 1966 SC 106p, wherein the supreme Court has held that if it is demonstrated that the impugned order was passed by a Court of competent jurisdiction, then it is not possible to question that decision on any grounds of legality unless the order in question was taken in appeal or revision and rectified. The Supreme Court has virtually applied the rule of finality to such orders and for good reason, insofar as there is no sanction or licence to a party to question the validity of an order or a decree after the period of limitation has expired by going behind that order and seeking to point out infirmities in it. As long as the order was passed by a Court of competent jurisdiction, the order is beyond question. In a subsequent decision reported in air 1977 SC 392 *, the Supreme Court had occasion to reiterate this principle by further laying down that irrespective of what the grounds of challenge to such an order are, if it has become final, that the bar of res judicata would apply in respect of such an order at a subsequent point of time. On this basis, mr. Goulay submitted that the order passed in 1984 directing the filing of a reference cannot be reviewed and that too, by the same Court. ( 4 ) LEARNED Government Advocate seriously disputes this position and seeks to contend that if the order offends a statutory provision or if it is in breach thereof, that it is open to that very Court to uphold such a challenge. ( 4 ) LEARNED Government Advocate seriously disputes this position and seeks to contend that if the order offends a statutory provision or if it is in breach thereof, that it is open to that very Court to uphold such a challenge. The learned Government advocate seeks to distinguish the Supreme Court decisions by pointing out that they did not refer to land acquisition proceedings and she further contended that where Section 18 (3) (b) has been interpreted to be operative only for a period of 3 years and 90 days, that the order passed on 27. 10. 1984 well beyond that period of time was an order without jurisdiction. I am unable to uphold this contention because, the Court which passed the order in 1984 was a Court of competent jurisdiction and at the highest, what is sought to be done is to plead certain legal infirmities in respect of the order in question. The law is well-settled that no such procedure is permissible by virtue of the rule of finality. I am considerably reinforced in this view by a series of decisions of the Supreme Court and of this Court under section 28 (1) (a) wherein, when claimants have applied for additional benefits, the State has sought to question the correctness of the earlier award which had become final and the courts have held that such a procedure is not permissible irrespective of what the ground of challenge is, if the State had not appealed against the original order or award. In this background, the objections raised on behalf of the State must necessarily be repelled. The order of 1984 will have to be viewed, in my considered opinion, from an entirely different angle. It is wrong on the special facts of the present case to assume that even a bar of limitation would bind the present petitioner when the application was made to the Court on 23. 4. 1984 under Section 18 (3) (b ). The reason for this is because, the petitioner had applied to the Court well in time in the year 1967 for a reference to be made to the Civil court and the department was obliged to make such a reference. It is true that the section prescribes a period of 90 days, but it also uses the word "shall". The reason for this is because, the petitioner had applied to the Court well in time in the year 1967 for a reference to be made to the Civil court and the department was obliged to make such a reference. It is true that the section prescribes a period of 90 days, but it also uses the word "shall". It therefore, means that the Land Acquisition Officer is obliged to forward the case to the Court for adjudication and that this must be done within 90 days. If the Land Acquisition Officer defaults on both counts, the claimants' right to have the matter adjudicated can never stand extinguished. I am completely fortified in this view by a well-considered judgment of this Court reported in ilr 1989 Karnataka 1931, wherein this court has very conclusively held that the various time-frames that are prescribed do undoubtedly require that certain actions be completed within a prescribed period of time, but that they cannot be read to mean that the claimants' or citizens' right would stand extinguished particularly in cases where the default is on the part of the department. This has been the consistent view of the Apex Court and of this Court over a period of time and in the light of that position, the only correct way of viewing the facts of the present case is that the right of a reference which has asked for within the prescribed period of time and which had accrued to the petitioner was still alive in the year 1984 when he approached the Court for a direction. Undoubtedly, the Court was helpless in the matter unless the reference was made or in other words, the case was forwarded to the Court and in this background, it would be wrong to hold that the right of the petitioner was extinguished. Undoubtedly, section 18 (3) (b) vests an option to the claimants to move the Court if the reference is not made within the period of 90 days. This is principally because the claimant is the party who is suffering and the Legislature considered it necessary to give the claimant a right to move the Court for getting the matter adjudicated by it. It is an option which the claimant would normally exercise because the claimant would be interested in an expeditious disposal of the matter. This is principally because the claimant is the party who is suffering and the Legislature considered it necessary to give the claimant a right to move the Court for getting the matter adjudicated by it. It is an option which the claimant would normally exercise because the claimant would be interested in an expeditious disposal of the matter. If the L. A. O. has not referred the matter to the Court within this period of time, it cannot then be concluded that the non-action on the part of the applicant would extinguish his right to get the matter adjudicated by the Court. Undoubtedly, it is expected that the claimant must act within reasonable time, but what the law envisages is that once the claimant has done the needful by way of a Section 18 (1) application, that the corresponding obligation in law has arisen on the part of the department to refer the matter to the Court and this obligation cannot stand extinguished merely through eflux of time. ( 5 ) HAVING regard to the aforesaid situation, though undoubtedly, the reference in this case is a belated one, it cannot be said that it suffers from any legal infirmities or for that matter, that the lower Court was precluded from entertaining it. The law on the point is clear and the impugned order in question would, therefore, have to be set aside. The proceedings stand revived and the trial Court is directed to hear the parties and dispose of the reference on merits. Since the case is an old one, the parties are directed to appear before the lower Court on 25. 11. 1996 for further orders and the learned Judge shall endeavour to dispose of the reference as expeditiously as possible. ( 6 ) THE C. R. P. in question succeeds. In the circumstances of the case, the respondents shall be liable to pay the costs of the petitioner. Petition allowed. --- *** --- .